Common use of Habitat Conservation Fund Clause in Contracts

Habitat Conservation Fund. 3.2.2.1 TCA shall commit to the expenditure of $28,000,000 as mitigation for a Post-Settlement Alignment for the primary purpose of preserving and restoring San Mateo Creek and its watershed (“Conservation Fund”). The Conservation Fund requirement is not intended to limit TCA’s mitigation obligations under applicable laws should those obligations exceed the Conservation Fund requirement. 3.2.2.2 With input from the Environmental Oversight Committee, TCA and SSOC shall cooperate in good faith to: (i) identify and assess potential land acquisitions and habitat restoration projects within the San Mateo Creek Watershed and adjacent watersheds that are ecologically related to habitat potentially impacted by a Post-Settlement Alignment (“Conservation Measures”); and (ii) prioritize such Conservation Measures on a list, (“Conservation Measure List” or “List”). A measure is “ecologically related” if it would provide ecosystem benefits that mitigate for biological values potentially impacted by a Post- Settlement Alignment. If a good faith dispute arises as to whether a proposed acquisition or restoration project is ecologically related to potentially impacted habitat, TCA and SSOC shall jointly request that the U.S. Fish and Wildlife Service (“USFWS”) provide a determination as to whether a measure is or is not ecologically related to potentially impacted habitat, which determination shall be binding on the Parties for purposes of this Section. If the USFWS refuses to issue such a determination, TCA and SSOC shall meet and confer to identify another mutually-agreeable Resource Agency to provide a binding determination. 3.2.2.3 The Conservation Measure List shall not include any measure that (a) is determined by USFWS (or another mutually-agreeable Resource Agency if USFWS refuses to consult and issue a determination) as not ecologically related to habitat potentially impacted by a Post-Settlement Alignment, or (b) would physically interfere with the implementation of a Post-Settlement Alignment being considered in the Environmental Review Process. In preparing the Conservation Measure List, priority shall be given to Conservation Measures within the San Mateo Creek watershed. If TCA and SSOC determine such measures are infeasible or do not require expenditure of the full Conservation Fund, other measures, including measures outside of the San Mateo Creek watershed, may be approved by mutual agreement between TCA and SSOC. Preparation of the Conservation Measure List shall be completed no later than December 31, 2017. Upon completion of the Conservation Measure List, TCA shall provide a written copy of the List to the State Parties. 3.2.2.4 After the Conservation Measure List has been prepared, TCA shall diligently and in good faith proceed to implement promptly each of the Conservation Measures on the List, in compliance with applicable laws, in the priority order set forth in the List, until the full Conservation Fund is exhausted. At least 15 days prior to making an expenditure from the Conservation Fund, TCA shall provide SSOC with written notice of the expenditure. If SSOC opposes such proposed expenditure within such 15 day period, the Parties shall meet and confer to resolve the dispute. TCA shall not proceed with the expenditure until such dispute has been resolved as identified in this Section. Upon making any expenditure from the Conservation Fund, TCA shall provide written notice containing a brief description of the expenditures to the State Parties. Nothing in this paragraph shall limit TCA’s ability to expend monies other than or in excess of those in the Conservation Fund on any item on the Conservation Measure List or for other mitigation measures related to the SR 241 Extension Project. 3.2.2.5 All property acquisition costs and fees associated with the measures on the Conservation Measure List, including the reasonable costs of long term habitat restoration, management, and monitoring, shall be eligible to be credited toward satisfaction of TCA’s Conservation Fund obligation. Eligible costs may include the costs of reasonably required outside consultants, but shall not include any staff or legal costs incurred by TCA or SSOC. 3.2.2.6 TCA and SSOC may from time to time amend the Conservation Measure List by joint written agreement, as may be needed to, inter alia, address measures on the Conservation Measure List that can no longer be reasonably accomplished and to ensure that the Conservation Measure List includes sufficient measures to allow expenditure of all of the Conservation Fund. In coordination with SSOC, as required by this Agreement, TCA shall use best efforts to implement each Conservation Measure at the earliest possible date, and to fully expend the Conservation Fund no later than December 31, 2021. If the Conservation Fund has not been fully expended by December 31, 2021, TCA shall place the remaining funds in an escrow account for the sole purpose of implementing the SSOC and TCA mutually agreed upon Conservation Measures for the benefit of the San Mateo Creek or adjacent watersheds. 3.2.2.7 Conservation Measures funded and performed under this Section 3.2.2 shall serve as mitigation required under the Environmental Review Process for any approved Post-Settlement Alignment to the full extent permitted by the Lead Agencies or applicable Resource Agency. Except as provided in Section 3.2.2.8, TCA shall be obligated to expend all of the Conservation Fund, regardless of whether the measures identified on the Conservation Measure List exceed the minimum project mitigation required by the Resource Agencies. 3.2.2.8 If TCA provides written notice to the Parties that it has formally abandoned the SR 241 Extension Project, TCA’s obligations under this Section 3.2.2 shall cease; provided, however, that if TCA thereafter revives the SR 241 Extension Project, TCA’s obligations under this Section 3.2.2 shall resume. If TCA formally abandons the SR 241 Extension Project, TCA shall be permitted to utilize, sell or bank, as mitigation credit, any Conservation Measure established with Conservation Fund monies prior to the abandonment of

Habitat Conservation Fund. 3.2.2.1 TCA shall commit to the expenditure of $28,000,000 as mitigation for a Post-Settlement Alignment for the primary purpose of preserving and restoring San Mateo Creek and its watershed (“Conservation Fund”). The Conservation Fund requirement is not intended to limit TCA’s mitigation obligations under applicable laws should those obligations exceed the Conservation Fund requirement. 3.2.2.2 With input from the Environmental Oversight Committee, TCA and SSOC shall cooperate in good faith to: (i) identify and assess potential land acquisitions and habitat restoration projects within the San Mateo Creek Watershed and adjacent watersheds that are ecologically related to habitat potentially impacted by a Post-Settlement Alignment (“Conservation Measures”); and (ii) prioritize such Conservation Measures on a list, (“Conservation Measure List” or “List”). A measure is “ecologically related” if it would provide ecosystem benefits that mitigate for biological values potentially impacted by a Post- Settlement Alignment. If a good faith dispute arises as to whether a proposed acquisition or restoration project is ecologically related to potentially impacted habitat, TCA and SSOC shall jointly request that the U.S. Fish and Wildlife Service (“USFWS”) provide a determination as to whether a measure is or is not ecologically related to potentially impacted habitat, which determination shall be binding on the Parties for purposes of this Section. If the USFWS refuses to issue such a determination, TCA and SSOC shall meet and confer to identify another mutually-agreeable Resource Agency to provide a binding determination. 3.2.2.3 The Conservation Measure List shall not include any measure that (a) is determined by USFWS (or another mutually-agreeable Resource Agency if USFWS refuses to consult and issue a determination) as not ecologically related to habitat potentially impacted by a Post-Settlement Alignment, or (b) would physically interfere with the implementation of a Post-Settlement Alignment being considered in the Environmental Review Process. In preparing the Conservation Measure List, priority shall be given to Conservation Measures within the San Mateo Creek watershed. If TCA and SSOC determine such measures are infeasible or do not require expenditure of the full Conservation Fund, other measures, including measures outside of the San Mateo Creek watershed, may be approved by mutual agreement between TCA and SSOC. Preparation of the Conservation Measure List shall be completed no later than December 31, 2017. Upon completion of the Conservation Measure List, TCA shall provide a written copy of the List to the State Parties. 3.2.2.4 After the Conservation Measure List has been prepared, TCA shall diligently and in good faith proceed to implement promptly each of the Conservation Measures on the List, in compliance with applicable laws, in the priority order set forth in the List, until the full Conservation Fund is exhausted. At least 15 days prior to making an expenditure from the Conservation Fund, TCA shall provide SSOC with written notice of the expenditure. If SSOC opposes such proposed expenditure within such 15 day period, the Parties shall meet and confer to resolve the dispute. TCA shall not proceed with the expenditure until such dispute has been resolved as identified in this Section. Upon making any expenditure from the Conservation Fund, TCA shall provide written notice containing a brief description of the expenditures to the State Parties. Nothing in this paragraph shall limit TCA’s ability to expend monies other than or in excess of those in the Conservation Fund on any item on the Conservation Measure List or for other mitigation measures related to the SR 241 Extension Project. 3.2.2.5 All property acquisition costs and fees associated with the measures on the Conservation Measure List, including the reasonable costs of long term habitat restoration, management, and monitoring, shall be eligible to be credited toward satisfaction of TCA’s Conservation Fund obligation. Eligible costs may include the costs of reasonably required outside consultants, but shall not include any staff or legal costs incurred by TCA or SSOC. 3.2.2.6 TCA and SSOC may from time to time amend the Conservation Measure List by joint written agreement, as may be needed to, inter alia, address measures on the Conservation Measure List that can no longer be reasonably accomplished and to ensure that the Conservation Measure List includes sufficient measures to allow expenditure of all of the Conservation Fund. In coordination with SSOC, as required by this Agreement, TCA shall use best efforts to implement each Conservation Measure at the earliest possible date, and to fully expend the Conservation Fund no later than December 31, 2021. If the Conservation Fund has not been fully expended by December 31, 2021, TCA shall place the remaining funds in an escrow account for the sole purpose of implementing the SSOC and TCA mutually agreed upon Conservation Measures for the benefit of the San Mateo Creek or adjacent watersheds. 3.2.2.7 Conservation Measures funded and performed under this Section 3.2.2 shall serve as mitigation required under the Environmental Review Process for any approved Post-Settlement Alignment to the full extent permitted by the Lead Agencies or applicable Resource Agency. Except as provided in Section 3.2.2.8, TCA shall be obligated to expend all of the Conservation Fund, regardless of whether the measures identified on the Conservation Measure List exceed the minimum project mitigation required by the Resource Agencies. 3.2.2.8 If TCA provides written notice to the Parties that it has formally abandoned the SR 241 Extension Project, TCA’s obligations under this Section 3.2.2 shall cease; provided, however, that if TCA thereafter revives the SR 241 Extension Project, TCA’s obligations under this Section 3.2.2 shall resume. If TCA formally abandons the SR 241 Extension Project, TCA shall be permitted to utilize, sell or bank, as mitigation credit, any Conservation Measure established with Conservation Fund monies prior to the abandonment ofof the SR 241 Extension Project, provided the credit is for a specific project or projects, and further provided that none of the projects is in or will have a Direct Impact to the Avoidance Area. Unless the SR 241 Extension Project is formally abandoned, TCA may not utilize, sell or bank any mitigation credit established with Conservation Fund monies for any non-TCA project.